Chester v Cowin (No 2) [2025] NSWSC 74

Supreme Court New South Wales

Medium Neutral Citation: Chester v Cowin (No 2) [2025] NSWSC 74 Hearing dates: On the papers Date of orders: 17 February 2025 Decision date: 17 February 2025 Jurisdiction: Equity Before: Hmelnitsky J Decision: [28] Catchwords: COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether plaintiffs' rejection of offer of compromise unreasonable SUCCESSION — Family provision — Nature of orders — Orders for provision – Right to occupy house until youngest child finishes school Legislation Cited: Probate and Administration Act 1898 (NSW) Cases Cited: Calderbank v Calderbank [1976] Fam 93 Chester v Cowin [2024] NSWSC 1554 Texts Cited: Nil Category: Consequential orders Parties: Geraldine Ann Chester (First Plaintiff) Matthew Wilson (Second Plaintiff) Mitchell Wilson (Third Plaintiff) CW (not his real name) by his tutor Geraldine Ann Chester (Fourth Plaintiff) TW (not her real name) by her tutor Geraldine Ann Chester (Fifth Plaintiff) Penelope Jayne Cowin (Defendant) Representation: Counsel: S Brennan (Plaintiffs) R Size (Defendant)

Solicitors: AKC Legal (Plaintiffs) Bryson Kelly (Defendant) File Number(s): 2023/158098

JUDGMENT 1. These are my reasons for making orders to give effect to the conclusions I reached in Chester v Cowin [2024] NSWSC 1554, to which I will refer as the principal decision. I will use the same naming conventions as in those reasons. I will also deal with the question of costs. 2. In the principal decision, I said at [53] and [55]: "[53] …I am satisfied that Geraldine and the two youngest children have not been left adequate provision because the estate does not allow them to continue to live in the Reindeer Place property. In my view, it is appropriate to make an order for further provision by granting them the right to occupy the house until such time as neither child is still in secondary school. However, I am not persuaded that they should be entitled to remain in the property at no cost to Geraldine... … [55] In the circumstances, the right of Geraldine and the two younger children to occupy the property should be subject to the following conditions: (a) that Geraldine pays a fee equal to one-third of the market rental for the property; (b) that Geraldine is solely responsible for the upkeep and maintenance of the property while ever she has the right to occupy the property. This includes the payment of insurance, rates, tax and utilities; and (c) that Geraldine is entitled to allow Matthew and Mitchell to continue to live in the property while ever she has the right to occupy the property." 1. I directed the parties to bring in agreed short minutes of order to give effect to these conclusions or, failing agreement, to make brief submissions as to the orders for which they contend. I also directed the parties to make submissions about costs.